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DMCA Violates Article I Section 8 Clause 8 of the US Constitution

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« on: September 19, 2010, 02:01:35 pm »


V. Hindering of Technology

A. Digital is Here to Stay, So We Need to Guarantee a Way to Work with the New Media, Not Hinder It

Make no mistake about it, practically all media are going digital. DVDs are currently taking advantage of the fact that they cannot be fair use copied. Similar copy protections are beginning to appear on CDs being [p122] sold in Europe and CDs in the United States are likely not far behind. [114] That means most, if not all, copyrighted materials will soon be embodied solely in a digital format, [115] and thus could be locked up by technological means. As of March 2002, there were five different types of copy controls available for CDs.[116] The DMCA is going to restrict, if not totally eliminate, all copying of popular entertainment, and as a result, restrict and hinder the development of any technologies allowing any sort of copying, including fair use. For example, the DMCA is going to hinder the progress of science in the art of mass storage and copying technology.

This runs afoul of Article I, § 8 of the U.S. Constitution. [117] It is important to note that the clause says laws empowered by that section must promote “progress.” That means laws that do not promote progress would be unconstitutional under this section. Scientific innovation is clearly progress. Bear in mind that a statute need not stop all innovation; simply hindering innovation hurts progress, and clearly does not promote it. As will be discussed further, the DMCA is unconstitutional if for no other reason than it hinders progress and innovation.

B. Overbroadness of the Act

The Act is overly broad in that it prevents the development of copying technologies that would not infringe copyrights. No exception is made for technology that has guards against infringement or is incapable of any infringement whatsoever. These technologies are not given a chance to develop in the shadow of the DMCA.

If someone were to develop a technology enabling a user to copy only up to forty percent of a digital work, sample the audio from a DVD, or better yet, make a copying program with a database of works that had passed into the public domain, accessed the digital ID of the work you wanted to copy,[118] examined the original date of publication of the work, and let one copy the original part of the work itself,[119] then it would still be illegal under the DMCA. This is because the Act only looks at [p123] circumvention of the technology, not whether the technology has a substantial, legitimate purpose for consumers who have a right to copy the underlying work.

This type of databasing technology is possible and is becoming a reality. Currently, RCA is selling a DVD player that can edit out violence and profanity from DVD movies. [120] The player accesses a database to retrieve the relevant information for a given movie so it knows what to edit. It would not be hard to add basic copyright information about a movie into the other information provided for that movie. The technology could likely be modified to address fair use rights for copyrighted works. This would help to provide a balance of the private versus public rights. Under the DMCA, however, there is no incentive to even develop a fair use copying technology because the ability to copy is a fatal flaw, regardless of the technologies’ other uses. The DMCA should be declared unconstitutional because it hinders the development of more technology than is reasonable, without looking to alternative technological measures that would hinder far less innovation.

As fair use is examined as the copyright equivalent of the First Amendment, the U.S. Supreme Court needs to read a requirement of fair use inherent in the Patent and Copyright Clause. The Court should then engage in an analysis similar to that of its First Amendment cases, and strike down, as unconstitutional, any law that burdens fair use more than necessary, or any copyright statute that burdens the public’s interest in the copyrighted material more than is necessary.

C. How a Law like the DMCA, If Enacted Previously, Would Have Hindered Development That Has Benefitted Society

While it is not entirely possible to look into the future and discern exactly how it will affect current technology, it is possible to use the 20/20 ability of hindsight to gauge how a law like the DMCA would have affected the development of older copying technologies. Imagine if, at the time of the development of the photocopier, publishing companies had managed to pass a law that still “guaranteed” fair use, but outlawed any photocopying technologies. If that was the case, then photocopying technology would not have developed or become as economical at as fast a rate as it did. In addition, better technologies would have developed more slowly (e.g. zoom enlargement and duplexing). [p124]

D. Photocopying Would Not Have Become as Affordable as it Has to this Point

The cost of an item is determined by simple supply and demand. The cost of photocopying, as well as the cost of the photocopier itself, has dropped in price over time because the ability (i.e., lack of a legal restriction) to make more copiers has guaranteed the ability to make more supply, and ensured that such supply actually existed.

As supply increases, the price per unit drops. As this occurs, it encourages manufacturers to find ways to make better units at a lower cost to increase their profits. This also leads to manufacturers trying to pack in more features to be competitive; or to get consumers to buy the manufacturers technology instead of one of the competition’s. This encourages manufacturers to come up with better features and new technologies. Innovation occurs within the industry when trying to find a way to make the staple item cheaper, while making it better at the same time.

Personal copiers have been available at office supply stores for over 16 years. In that time, the price of these units has dropped from upwards of $500 for a basic one-sheet-at-a-time unit down to $50-$100. It becomes even cheaper if a consumer wants to use the photocopying feature of a cheap fax machine. These cheaper units also have features that were not available on the older units, such as zoom, autofeeders, page duplexing, and multiple copies.

It is a reasonable inference that the development of photocopying technology led to the development of related technologies, such as computer scanners and its progeny, optical character recognition technology. The absence of any meaningful legal restriction on the development of photocopying technology allowed the progress of the science of photocopying. The lack of restriction gave an incentive to manufacturers to develop and exploit this technology to its full economic extent and to the benefit of the consumer.

It is safe to say that if such restrictions existed, these technologies, if available at all, would not be available to the public today at their current state of advancement and their low price. The availability of these technologies not only allows greater access of the public to make fair use copies of other works, but also allows easier entry into the self-publication market. [p125]

E. Specific Types of Technology Hindered by the DMCA

1. High-Capacity Multimedia Content Players

The types of technology most directly hindered by the DMCA are obviously, the copying technology on its face and, more importantly, technology that allows mass storage and archival of entertainment material of which a consumer already owns a legitimate copy. These High-Capacity (multimedia) Content Players (HCCPs) fall within the realm of MP3 players utilizing a hard drive to increase their capacity, such as the Apple iPod®, which is just one of many such devices available. Devices such as these allow a consumer to convert their entertainment material to a different format and store it in a smaller format.

Shrinking and efficiency have always been logical products of the progress of science in any technical art form. To paraphrase the Six Million Dollar Man: “we can make it faster, stronger, better than it was before.” [121] Science always wants to improve itself, and economics dictates that it reduce its cost.

Prior to a device like the iPod, users who wanted to travel and listen to their music had to carry a portable player of some sort, while carrying their compact discs with them. The space taken up by a player and some twenty compact discs was equivalent to that of a small shoe box. There is no doubt that portable entertainment is a huge industry in this country and an integral part of the travel of many consumers. Innovation in HCCPs brought new efficiency in this area. The MP3 computer file led to the development of the basic portable MP3 player, which led to HCCPs.

With the advent of HCCPs, which in one device incorporates both the player and the ability to store music, a user can condense a music collection of some five hundred CDs down to the size of a deck of playing cards. HCCPs are an advancement for a staple article of commerce, the portable music player. Until you have tried one, you cannot truly appreciate what a marvelous innovation this type of technology is. The ability to have your legitimate music on hand at any time is an amazing convenience, much the same way the instant track access feature of a CD was a vast improvement over the cassette tape.

2. New Formats and Their Associated Hardware Drives Innovation

In a sense, this technology drives a new format. LPs gave way to eight-tracks, which gave way to tapes, which gave way to CDs, which gave way [p126] to raw computer files of the entertainment. The mass storage devices to contain those files are the next format. Mass storage devices are clearly a more efficient way to store and travel with one’s music.

The fast paced innovation in this area is reflected by the vast diversity of players available. The iPod, one of the most popular players, is on its third generation, less than two years after hitting the market. In that time, it has multiplied tenfold its storage capacity.[122] In July and August of 2003, this innovative new device was the number one selling MP3 player.[123]

This sort of fast-paced innovation, a tenfold increase in two years, outstrips the normal innovation posited by Moore’s law, which states that data density will double approximately every eighteen months.[124] Moore’s law generally speaks more to the data density of integrated circuits. Granted, the capacity of HCCPs is more a factor of miniaturization of hard drives than chip capacity, yet still on the average hard drive capacity has not progressed at a tenfold rate over the last few years. Today’s average hard drives in the $150 price range are now close to ten times larger than a similarly priced hard drive two years ago.

The advent of MP3 players drove innovation in the area of the miniaturization of hard drives and mass storage devices, an area that had lain fallow for many years, despite the best efforts of industry giants like IOMEGA® to foster sales in that area. [125] We are also seeing MP3 players in the form of stand-alone stereo components for high-end stereophiles, as the MP3 format gives them a chance to collect their entire catalog of music in one home component. Logically, as the format continues to grow, innovation will likely address some of the MP3 issues, such as retaining more of the sound quality that is lost when audio files are converted to MP3.

HCCPs run into other DMCA problems in that a user who converts their collection to a format for storage on an HCCP, would want to back-up their converted media files majority of the time. HCCPs work by having the user take an original source music format, such as a CD, place that original source in the user’s CD-ROM drive on their personal computer (PC), and then copy the music to a hard drive. The user then synchronizes the HCCP with their PC to transfer and update files. Current [p127] technology takes about ten minutes to convert a standard seventy-minute CD to MP3 format. For a user with approximately three hundred CDs, it would take approximately fifty straight hours of conversion work. If the DMCA prevents technology to back up that hard drive and anything were to happen to the hard drive where the converted files reside, the user would have to redo those fifty hours of work just to get their music back into a format where it can be put back on to the HCCP to resynchronize it. Any user who had invested that sort of initial setup time would obviously want to take steps to avoid having to repeat their work.

Currently, the DMCA does not prevent a consumer from copying their own CDs to an MP3 player for their own enjoyment. However, once CDs are encoded with protection technology preventing this, circumventing that technology to put them onto an MP3 player will constitute a violation.

It seems like the next logical progression in this scientific art would be to make better higher-capacity MP3 players at cheaper prices, and to develop some sort of technology that allows users to compress and back-up those music files for migration to a variety of devices, such as the user’s car stereo or home playback units.

3. There Are Current Mass Storage Devices That Exist in Derogation of the DMCA

A company called Archos SA[126] currently manufactures a video equivalent of an iPod called the AV100, which allows a consumer to record to the unit a video signal from any number of devices, [127] including a DVD player. The player circumvents the CSS copy protection software used to protect DVDs by essentially ignoring the copy protection code.[128]

The Archos unit can store up to about 320 hours of video, which is about 200 movies. [129] The unit obviously has the same practical purpose as an iPod in that it can allow a consumer to store their entire catalog of video content in one unit. It can also allow a consumer to travel with some of their movies without having to deal with the cumbersome task of carrying a portable (read expensive) DVD player or a laptop with DVD capability. Six more units of this type from different manufacturers are supposed to [p128] be available by year’s end.[130] If units of this type are found to be proscribed by the DMCA, however, we can expect them to go the way of the eBook reader, one of the first digital dodos.

The unit has plenty of non-infringing uses and tremendous business potential. The possibility of the home user being able to store their entire video collection in one stand-alone unit would save a tremendous amount of storage space. It allows consumers who put on business presentations to make a video grade back-up copy of PowerPoint® presentations in a video format, in case they do not have computer access or there is a computer malfunction at the site where they have to make their presentation.

4. Prohibiting the Software Also Prevents Fair Use and Hinders Innovation

For those looking for a theoretically cheaper route, you can turn to a laptop, if you already own one that has MP3 or DVD capability. Users could copy some of their music library or video library to a laptop before traveling. However, with regard to DVD and the eventual progression of protected CDs, the technology, generally software that would allow copying of the underlying material to the hard drive, would be banned under the DMCA.

That ban would frustrate progress because such laptop-type usage, as it grows, would encourage innovation in the field of computers. DVD and MP3 playback, especially DVD playback, taxes more of the laptop’s system resources and battery power than most common applications. Music files and DVD files also take up a fair amount of hard drive storage, which on a laptop, is already generally too small as it is. As the desire for more DVD and MP3 laptop playback grows, there will be greater demand for better batteries, higher capacity miniature laptop drives, and better CPUs and playback software. While there is already demand for these, increasing the availability of the current technology will drive more demand. Accordingly, by simple economic laws, such as Adam Smith’s infamous “invisible hand,” the industry will direct more of its innovative efforts in terms of making the items that are demanded more, and in theory they will be developed sooner than if the underlying copying technology was banned by the DMCA. [131] [p129]

5. Effects of Banning this Whole Area of Technology on the Progress of Science

By banning this entire area of technology, there is less incentive for manufacturers to spend money on miniaturization and mass storage devices for the home consumer. There will still be innovation, but at a lower rate. However, the Patent and Copyright clause is offended when progress is not promoted. The slowing of innovation and growth is not progress. For that matter slowing the progress whose direction you can see is not the only hindrance to innovation. Who knows what new technologies will be born out of research and growth in the digital copying technologies, much like scanners were born out of photocopying technology.

6. Other Technology Affected by the DMCA

The advent of the PC has allowed more consumers to run businesses out of their homes and has increased the average consumer’s household productivity. There are PCs in sixty percent of American households.[132]

Obviously, many businesses use PCs. One industry in particular that makes extensive use of PCs to accomplish tasks that used to require more sophisticated equipment is the small recording studio. In effect a decent recording studio can start up business for much less money than used to be required. To be a decent recording studio, you need the ability to copy the work you produce. This would logically include copying your masters, and having technology that would allow you to copy works in which you had already integrated digital copy protection. However, the DMCA makes no sort of exception for the purchase of commercially necessary technology by a professional user. In effect, the DMCA puts the power of getting around access in the hands of entertainment producers that have developed the technological safeguards or the producers who manufacture the protection for them. It keeps the power in the hands of major players, the big recording studios, and gives them an even greater competitive advantage against the little guy.

It is worth noting that the DMCA itself, while providing some exceptions for reverse engineering and computer software interoperability, does not even allow the creators of copy protection software to sell technology circumventing their own measures. This seems nonsensical, as the right to exploit your own technology has to be implied in the statute. [p130]

7. The DMCA is Overbroad in That it Prohibits the Rights of Manufacturers to Address Non-Computer Software Based Interoperability Issues

a. Macrovision

One form of DVD scrambling present on all DVD players works by using a system called “Macrovision.” Macrovision operates by distorting the video signal from the DVD unit when that signal passes between an intermediate unit between the DVD player and the TV set. [133] Such a unit could be a stereo receiver or, as the entertainment industry fears, a recording device. [134] During playback of the movie, Macrovision alters the video signal going into the intermediate unit so that the picture’s brightness is constantly in a state of flux, shifting from light to dark, in such a way that is extremely annoying to the viewer. Macrovision proponents probably believe that no one would want to watch such an annoying copy of the film. [135] In turn, they think it will prevent consumers from copying DVDs, especially when the copies would possess this annoyance.

Macrovision technology, however, hampers the fair use as well as general non-copying use of both poor and rich alike. It affects the poor in that they have to buy a better TV if they want to use a DVD player. Low cost TVs do not usually have the requisite input connectors to connect a low cost DVD player, and often, the only option to connect such a player inadvertently and inappropriately activates the Macrovision protection.

b. High-End Audio/Visual Equipment

Another fair use technology that is soon going to disappear is the next generation equivalent of the translator VCR. A translator VCR is a device that allows families living abroad to enjoy movies recorded in a different TV format. Different geographic regions use different formats, and they are incompatible with each other. A translator VCR has tuners built in for more than one format. The formats are dependent on vertical lines of resolution, a given format will have a set number of lines. Issues of increasing picture quality, as discussed in the high-end stereo section, is [p131] a function of horizontal lines of resolution. The United States and Canada use a format called NTSC, Europe uses a system called PAL, and Asia uses a system called SECAM. A family that moves abroad often buys a translator unit because one unit will work both formats with one television. They can watch their old movies and their new movies on the same machine.

In theory, a DVD connoisseur, or someone who immigrates to the United States, may want to buy a translator DVD player. DVDs in different regions use different access controls. A DVD from the United States will not play in a DVD player in Europe using different region encoding. There is an industry standard as to what the access is for each region. In theory, region 2 discs are encoded that way so that they cannot be played on DVD players in the United States, which is region 1. The original intent was to prevent consumers from buying overseas black market and pirated copies of domestic movies, which are encoded for the region in which they are pirated, and then bringing them back to the home country. This is yet another system born out of Pandora paranoia. Most consumers are not that sophisticated. They are not generally exposed to the black market for movies. They buy their DVDs at major stores who buy their DVDs from the entertainment producers.

There does not seem to be any good reason under the law why one is not entitled to a fair use to watch a legitimate copy of a movie purchased from a different region. Yet, in theory, because a translator DVD player would circumvent an access control for a work (albeit one that the user owns a legitimate copy of) that the entertainment producer does not want accessed in the United States, that entertainment producer could likely get an injunction on the grounds that the unit would be illegal under the DMCA.

A company called Yamakawa currently markets a translator DVD player. [136] However, considering how vigorously the entertainment producers recently attacked legitimate DVD players that could bypass protection, Yamakawa should be concerned.

Four years ago, a company called APEX sold a DVD player that had a design “flaw,” allowing users to bypass various digital protections built into DVDs. [137] The device was not designed to circumvent protections, it simply had a design “flaw” that allowed users to bypass various digital protections built into DVDs.[138] The “flaw” was that the menus were not [p132] accessed with special equipment at the time of manufacture, but were instead programmable directly from the built in controls on the unit. This information was not supposed to leave the manufacturer.

Nevertheless, information circulated via the Internet explained how to press a combination of buttons that would allow the consumer to access the higher menu functions of the DVD player and disable the copying and access controls. While there was no technology primarily designed to circumvent a technological measure, there was know-how. Apparently, even know-how could not be tolerated. Macrovision complained to eBay that the device infringed their rights under the DMCA and eBay banned all sales of the device. [139] APEX recalled its units, even though the device was not “designed” to circumvent digital protections.[140]

With a variety of connector jacks, and new standards of proprietary jacks coming out each year, some hookups of equipment will get interference from copying control measures, even though all that the user wants is interoperability of their (non-computer based) equipment.

There are four types of standard video signal connectors. The most obviously recognized is the coaxial cable connector. This is the type of connector that is on the backs of all televisions sold in the United States. This is the same connector as the one that is on the cable jack in the walls of residential homes, and commonly uses a threaded on connector. In the case of Coaxial cable, one cable does it all, picture and sound.

The next step up is “RCA” connectors. These cables, and their jacks, look like those of standard stereo cables. Yellow is for video, and red and white are for the right and left channels of stereo, respectively. The next step above substitutes what is known as a super video, or S-Video, jack for the RCA video jack, while still using the red and white for sound. This jack looks similar to a keyboard jack on a computer. This jack provides better resolution than the RCA jack in that it separates the chrominance and luminance in the video signal to provide a better picture. A prime example of this is the herringbone jacket Johnny Carson used to wear on the Tonight Show. On TV, it seemed to shimmer. In real life, the jacket did not actually shimmer. It only did so on TV, because the color and brightness signals were substantially interwoven. On TV sets with a supervideo signal, the jacket appeared normal. Lastly, component video is sharper than S-Video in that it separates out the chrominance signal into the component colors of red, green, and blue, using connectors that look like RCA cables.

[p133] In terms of picture quality, the resolution [141] of each jack from lowest to highest is: coaxial, RCA jacks, S-Video, and component video. Coaxial cable is about 240 lines of resolution. RCA cables are about 330+, S-Video is about 425, and component video is significantly higher than that. Note, VCRs record at about 200 lines of resolution. That is why videotaped shows always look to be lower quality than when the show is being broadcast. DVDs tend to have a picture quality of approximately 425 lines of horizontal resolution. HDTV is broadcast normally at approximately 720 lines of resolution.[142]

Cheaper TV sets have only coaxial cable jacks. Cheaper DVD players have only RCA jack and S-Video jacks. Market forces tend to dictate that, in fact, most DVD players do not have low coaxial jacks, as there is simply little to no demand for one on a DVD player, which is a high resolution unit. Most owners would not want to take a picture with 425 lines of resolution and cut the picture quality in half by running it through the lower resolution jack. However, VCRs all have RCA jacks, and practically everyone owns a VCR. For those who cannot afford a better TV yet, already own a cheap VCR connected to that TV, and want to use a DVD player on their TV, they can connect the DVD player to the VCR using the RCA jacks on both the DVD player and the VCR. This set up runs the DVD signal through the VCR. However, because the VCR is an intermediate unit, the Macrovision will then distort the picture. Thus, Macrovision prevents low-income families from truly enjoying DVD playback.

At the other end of the spectrum, Macrovision complicates connecting high-end video equipment. Stereophile and videophile enthusiasts tend to own separate components, including some from an Audio/Video receiver, or separate preamplifier and amplifier, collectively referred to as an “A/V component.” Better systems have on-screen menus and picture enhancing technology. These systems are designed so that all of your components connect to the receiver or preamplifier, and then go straight into the television. The A/V component, in addition to providing better audio and video processing, also acts as a switch box. With the advent of Macrovision, however, the switching feature of a $3,000 A/V component just became worthless.

[p134] Computer code is speech. Computer code is used by the A/V component to help render a better picture. The output of that picture signal is one of expression on the part of the A/V component manufacturer. Macrovision distorts that expression. One protection is being used to stifle someone else’s expression and copyrighted material. In theory, sometimes the copy control used by an entertainment producer will interfere with the hardware manufacturer’s expression. [143] The copy protection interferes with the integrity rights of the hardware manufacturer’s expression. This creates a conflict as to whose copyright needs take precedence. More importantly, does one party’s copyright trump another party’s? While gut instinct might incline one to say that the consumer wants the underlying entertainment product, the law makes no such distinction that one type of copyrightable subject matter is better than another.

What if the A/V component manufacturer wanted to make a device that eliminated the copy control’s interference with their system and simply restored their original picture quality, yet in doing so, they are obviously circumventing the measure itself, even though no copying purpose is intended? It is possible that someone would want to design a box that would simply allow a consumer to connect all of their equipment in such a way that they can enjoy the equipment that they already own.

VI. Hindering Development of Primary Technology will also Hinder the Development of Enhancement Products

A. The DMCA Allows Unwanted Goods and Services to be Forced Upon Consumers

Static Control shows us that the DMCA can be used to force consumers to buy products ancillary to other hardware they already own, simply in the name of copyright. Recalling the concerns about digital TV recorders, it is possible the DMCA could be used to make users pay for services ancillary to hardware in perpetuity.

In the context of a Digital Video Recorder (DVR) such as a TiVo®, a DMCA-violating device could be as simple as a mechanism that lets you bypass the clock feature on a TiVo. A TiVo is designed to store some information, some recorded programs, and TV Guide time information [p135] only for a finite time. The TiVo updates itself on a regular basis by connecting to TiVo servers via a standard RJ-11 phone jack late at night. At this time information is exchanged between the units. This service is contracted for near the beginning of the TiVo “experience.” When you buy your TiVo and take it home you call TiVo or go on-line to set up an account. You pay a monthly service fee or a lifetime fee for programming information. Some DVRs will not function if they have not connected to the servers after a given period of time.

Unfortunately, the DVR will not work without receiving the TV Guide information from which you select which shows to record. Many DVRs cannot be programmed like a traditional VCR where you enter the start and stop time for a given channel. Instead you have to use the on-screen TV Guide and then click on the show you want. Enter now, the hypothetical home consumer who no longer wants to pay for the subscription service, [144] does not plan on using any proprietary program guides, but still want to use the unit as a stand-alone TV signal recorder, just like a VCR, except that DVR uses a hard drive.

Fortunately for that hypothetical consumer there is a hypothetical company that will sell a small box that will plug into the consumer’s DVR via the RJ-11 jack and allow them to trick their DVR into still working. Any such device would have to be able to set the clock on the DVR unit. However, any such device could theoretically use the machine to alter the clock so that the consumer could bypass any time expiration embedded in a program. Now the machine would not recognize a copy protection, and thus, the technological fix the consumer bought, for a fair use purpose, was trafficked in violation of the DMCA. The consumer is stuck having to pay for the programming service ad infinitem if they want their DVR to work. As a result, the DMCA allows manufacturers to tie up needless service fees in perpetuity if you want to be able to still use a machine you already own.

What about the fact that competition for other TV guide programming is hindered? TiVo has competitors, such as ReplayTV. What if one company offers better TV guide programming software for their units, and designs it to interface with the other machines? In order to work with the TiVo hardware, that software needs to handshake with the dialing-in process in the TiVo machine. In the end, the fair use at issue is home recording of TV broadcasts. The quality of the TV guide is ancillary to the [p136] final issue, but the DMCA allows those ancillary services to be tied. Keeping services tied to hardware will hinder the development of competing technologies. While the competitors will still innovate to make their software product better, they will not spend as much on R&D of the software. This is because the demand for their product will be constrained by the fact that owners of other hardware will not be in a position to demand their product because of the DMCA.

Entertainment producers do not just target technology primarily designed to circumvent copying controls. They also threaten to sue manufacturers of any technology that can be used to circumvent, and to sue anyone who just provides information about how to circumvent.

B. The DMCA Condones “Big Brother”-Type Acts, Including Practices That Would Otherwise be Wiretapping

Under § 1201(h), the entertainment producer can require as part of its protection technology, that the consumer provide any personal information or maintain constant broadband connection to the producer in order to view the work. [145] Problems arise if the producer requires, as part of its protection technology, that you leave the “cookies” in your Internet browser turned on. If you then wish to protect your privacy by buying some sort of filtering software that blocks the personal information stored in those cookies, you would be prevented because the software would violate the DMCA.[146]

In theory, every time a consumer uses a Google-type toolbar that automatically enters a fake e-mail address for the consumer when registering for a web site (in order to cut down on the junk e-mail that comes from such a registration), the consumer may be using a technology in derogation of the DMCA.[147] Will the entertainment producers take on Google?

This means that the DMCA could legally hinder the development of pop-up blockers and firewall technology. The DMCA gives entertainment producers the ability to tell the public how and when they will view works for which they have already paid. Theoretically, a producer could even develop a protection technology under § 1201(a) that would require consumers to initially register themselves to use the work. Then, every time the user tried to access the work, this technology would verify the identity of the consumer and charge the user a small fee to maintain that [p137] system. Such a system would seem to run afoul of the first sale doctrine by making users pay to see a work they have already paid for. It would seem to be the province of a savvy user to develop and share with others a way to get around this, [148] but such circumvention technology would be a DMCA violation.

C. The Entertainment Industry is Given to Engage in all Types of Bad Faith Business Practices, All in the Name of Protecting “Access to” and “Copying of” Works

In a day and age where corporate America seems to advertise on everything it can, do we want to hand over so much power to the corporations? It has been hypothesized that the next generation of cellular phones will inundate the user with advertising directed to the cellular phone owner, with the cellular service provider reaping a fee from the advertiser.[149] Many users will obviously find this annoying, and will likely seek a way to avoid this.

On the other hand, the ads themselves will be entitled to copyright protection. The software that runs the phone and provides the ads is entitled to copyright protection. Cellular phone providers currently use technological measures to control access to the higher functions of the cellular phones. Currently Verizon® customers who own “Third Generation Phones” have no choice but to accept the Verizon splash screen when their phone starts up. That splash screen is eligible for copyright protection. Verizon uses technology to make sure that consumers cannot access the splash screen and change it. It is likely that the same type of technology will be used to control access to advertising on cellular phones in the future.

What about the consumer who does not want to accept the advertising [150] and buys third party software to customize their phone, disabling any incoming advertisements? The technology that allows the consumer to access and customize their own phone would technically violate the DMCA because that technology controls access to copyrighted material. This, in spite of the belief that consumers should have some say so on restricting content on their phone.

[p138] Do we want to take away so much freedom from the public? Do we doubt that such a misuse of the DMCA could come about? It is already here.

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